HomeMy WebLinkAboutAGENDA REPORT 2010 1215 CC REG ITEM 09CITEM 9.C.
OF MOOR!>ARK, CA, i«N--
City Council N,eetinq
MOORPARK CITY COUNCIL of 1a2 is -aoi0 _.
AGENDA REPORT ACTION:�i,�s,,,� .ofs
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TO: Honorable City Council
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FROM: David A. Bobardt, Community Development Director
DATE: December 3, 2010 (CC Meeting of 12/15/2010)
SUBJECT: Consider the Ad Hoc Committee Recommendation on Development
Agreement No. 2009 -02 with Los Angeles Avenue LLC for
Approximately 44.467 Acres North of Los Angeles Avenue and West
of Gabbert Road
BACKGROUND /DISCUSSION
A development agreement between the City and Los Angeles Avenue, LLC, for the
proposed 559,450 square -foot 12- soundstage motion picture studio complex on a
44.467 acre site, north of Los Angeles Avenue and west of Gabbert Road, has been
drafted. A location map is attached. Other applications in process associated with this
project include General Plan Amendment No. 2009 -01, Zone Change No. 2009 -01,
Industrial Planned Development (RPD) Permit No. 2009 -01, and Conditional Use Permit
No. 2009 -01. The Development Agreement Ad -Hoc Committee (Mayor Parvin and
Mayor Pro Tern Mikos) met with representatives from Los Angeles Avenue LLC
(developer) and staff several times and most recently on October 5, 2010, to review and
finalize the terms of the attached draft development agreement for this proposed
project. Since that time, staff has been refining the language in the draft agreement.
The key substantive points of the draft agreement include:
■ Developer is to pay negotiated development fees.
■ Developer is to contribute toward City "Welcome" sign and allowance of
sign on future pedestrian bridge over North Hills Parkway
■ Developer is to provide access to properties to the west from North Hills
Parkway through a private street. The City agrees to consider accepting
this street as a public street with an assessment district for maintenance if
the developer is unsuccessful in obtaining an agreement for maintenance
from the property owner to the west.
■ Developer is to provide certain physical improvements to Los Angeles
Avenue including widening to 4 lanes and installing sidewalks on both
sides of the street, a raised median from North Hills Parkway to
S ,Co^ rm ,,, De.e- 00 —r —DE v PM I S,i P D0009 0' W�o•oa•• hey S'..o o,,AgP-Oa 4PPo ^%,C C 10111 S D• S,a- Prpo- do( 120
Honorable City Council
December 15, 2010
Page 2
Gabbert/Tierra Rejada Road intersection, and a signal at North Hills
Parkway.
■ Developer is to dedicate full right -of -way for North Hills Parkway from Los
Angeles Avenue to the railroad ROW.
■ Developer agrees to participate in a Community Facilities District or other
financing mechanism for the construction of North Hills Parkway.
■ City is to give Developer credit toward Los Angeles Avenue Area of
Contribution fees for construction of core improvements to Los Angeles
Avenue.
■ City is to allow credit towards Art in Public Places contribution for art to be
placed on a proposed wall in the Caltrans Right of Way if art approved by
City Council and Caltrans.
Two fees normally agreed to with residential projects, the Community Services Fee and
the Public Facilities Fee, are not included in this agreement as these fees are not
applicable to industrial projects. Staff continues to work with the developer on refining
the language in the agreement, without changing the key deal points noted above. Staff
recommends that the Development Agreement hearings be scheduled concurrently with
the other entitlement application hearings for this project.
STAFF RECOMMENDATION
Direct staff to set and advertise public hearings before the Planning Commission and
City Council for consideration of the development agreement, concurrent with other
related entitlements.
Attachments:
1. Location Map
2. Draft Development Agreement
121
LOCATION MAP
Industrial Planned Development Permit No. 2009 -01
General Plan Amendment No. 2009 -01
Zone Change No. 2009 -01
Moorpark West Studios Motion Picture Studio Complex
11289 Los Angeles Avenue
CC ATTACHMENT 1
122
Recording Requested By
And When Recorded Return to:
CITY CLERK
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark. California 93021
EXEMPT FROM RECORDER'S FEES
Pursuant to Government Code
§ 6103
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF MOORPARK
AND
LOS ANGELES AVENUE LLC
THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS
OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO
THE REQUIREMENTS OF GOVERNMENT CODE §65868.5
CC ATTACHMENT 2
123
DEVELOPMENT AGREEMENT
This Development Agreement ( "the Agreement ") is made and entered into on
. by and between the CITY OF MOORPARK, a municipal
corporation, (referred to hereinafter as "City ") and Los Angeles Avenue LLC, the owner
of real property within the City of Moorpark generally referred to as Industrial Planned
Development Permit 2009 -01, (referred to hereinafter individually as "Developer "). City
and Developer are referred to hereinafter individually as "Party" and collectively as
"Parties." In consideration of the mutual covenants and agreements contained in this
Agreement. City and Developer agree as follows:
Recitals. This Agreement is made with respect to the following facts and for the
following purposes. each of which is acknowledged as true and correct by the
Parties:
1.1. Pursuant to Government Code Section 65864 et seq. and Moorpark
Municipal Code chapter 15.40, City is authorized to enter into a binding
contractual agreement with any person having a legal or equitable
interest in real property within its boundaries for the development of such
property in order to establish certainty in the development process.
1.2. Prior to approval of this Agreement, but after the approval of the Mitigated
Negative Declaration (MND), Mitigation Measures. and Mitigation
Monitoring and Reporting Program ( "the MMRP ") for the Project
Approvals as defined in subsection 1.3 of this Agreement, the City
Council of City ( "the City Council ") approved General Plan Amendment
No. 2009 -01 ( "GPA 2009 -01 "), Zone Change No. 2009 -01 (ZC 2009 -01).
Industrial Planned Development Permit No. 2009 -01 (IPD 2009 -01) and
Conditional Use Permit No. 2009 -01 (CUP 2009 -01, for approximately
44.467 acres of land within the City ( "the Property "), as more specifically
described in Exhibit "A" attached hereto and incorporated herein.
1.3. GPA 2009 -01, ZC 2009 -01, IPD 2009 -01. and CUP 2009 -01 [collectively
"the Project Approvals ". individually "a Project Approval'] provide for the
development of the Property and the construction of certain off -site
improvements in connection therewith ( "the Project ").
1.4. By this Agreement. City desires to obtain the binding agreement of
Developer to develop the Property in accordance with the Project
Approvals and this Agreement. In consideration thereof, City agrees to
limit the future exercise of certain of its governmental and proprietary
powers to the extent specified in this Agreement.
1.5. By this Agreement, Developer desires to obtain the binding agreement of
City to permit the development of the Property in accordance with the
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Project Approvals and this Agreement. Developer anticipates developing
the Property over a minimum of three (3) years. In consideration thereof,
Developer agrees to waive its rights to legally challenge the limitations
and conditions imposed upon the development of the Property pursuant
to the Project Approvals and this Agreement and to provide the public
benefits and improvements specified in this Agreement.
1.6. City and Developer acknowledge and agree that the consideration that is
to be exchanged pursuant to this Agreement is fair, just and reasonable
and that this Agreement is consistent with the General Plan of City. as
amended by GPA 2009 -01.
1.7. On 2010, the Planning Commission of City commenced a
duly noticed public hearing on this Agreement, and at the conclusion of
the hearing recommended approval of the Agreement.
1.8. On 2010, the City Council commenced a duly noticed public
hearing on this Agreement. and at the conclusion of the hearing on
2010. approved the Agreement by Ordinance No. ( "the
Enabling Ordinance ").
2. Property Subject To This Agreement. All of the Property shall be subject to this
Agreement. The Property may also be referred to hereinafter as "the site" or "the
Project ".
3. Binding Effect. The burdens of this Agreement are binding upon, and the benefits
of the Agreement inure to, each Party and each successive successor in interest
thereto and constitute covenants that run with the Property. Whenever the terms
"City" and "Developer" are used herein, such terms shall include every successive
successor in interest thereto, except that the term "Developer" shall not include the
purchaser or transferee of any lot within the Project that has been fully developed in
accordance with the Project Approvals and this Agreement.
3.1. Constructive Notice and Acceptance. Every person who acquires any
right, title or interest in or to any portion of the Property except any lot
within the Project that has been fully developed in accordance with the
Project Approvals and this Agreement shall be, conclusively deemed to
have consented and agreed to be bound by this Agreement, whether or
not any reference to the Agreement is contained in the instrument by
which such person acquired such right, title or interest
3.2. Release Upon Transfer. Upon the sale or transfer of any of Developer's
interest in any portion of the Property, that Developer shall be released
from its obligations with respect to the portion so sold or transferred
subsequent to the operative date of the sale or transfer, provided that the
Developer (i) was not in breach of this Agreement at the time of the sale
or transfer and (ii) prior to the sale or transfer, delivered to City a written
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assumption agreement, duly executed by the purchaser or transferee and
notarized by a notary public, whereby the purchaser or transferee
expressly assumes the obligations of Developer under this Agreement
with respect to the sold or transferred portion of the Property. Failure to
provide a written assumption agreement hereunder shall not negate,
modify or otherwise affect the liability of the purchaser or transferee
pursuant to this Agreement. Nothing contained herein shall be deemed
to grant to City discretion to approve or deny any such sale or transfer.
except as otherwise expressly provided in this Agreement.
4. Development of the Property. The following provisions shall govern the subdivision.
development and use of the Property.
4.1. Permitted Uses. The permitted and conditionally permitted uses of the
Property shall be limited to those that are allowed by the Project
Approvals and this Agreement.
4.2. Development Standards. All design and development standards,
including but not limited to density or intensity of use and maximum
height and size of buildings, that shall be applicable to the Property are
set forth in the Project Approvals and this Agreement.
4.3. Building Standards. All construction on the Property shall adhere to all
City building codes in effect at the time the plan check or permit is
approved per Title 15 of the Moorpark Municipal Code and to any federal
or state building requirements that are then in effect (collectively "the
Building Codes ").
4.4. Reservations and Dedications. All reservations and dedications of land
for public purposes that are applicable to the Property are set forth in the
Project Approvals and this Agreement.
5. Vesting of Development Rights.
5.1. Timinq of Development. In Pardee Construction Co. v. City of Camarillo.
37 Cal.3d 465 (1984), the California Supreme Court held that the failure
of the parties therein to provide for the timing or rate of development
resulted in a later- adopted initiative restricting the rate of development to
prevail against the parties' agreement. City and Developer intend to
avoid the result in Pardee by acknowledging and providing that Developer
shall have the right. without obligation, to develop the Property in such
order and at such rate and times as Developer deems appropriate within
the exercise of its subjective business judgment.
In furtherance of the Parties intent. as set forth in this subsection, no
future amendment of any existing City ordinance or resolution. or future
adoption of any ordinance, resolution or other action. that purports to limit
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the rate or timing of development over time or alter the sequencing of
development phases. whether adopted or imposed by the City Council or
through the initiative or referendum process, shall apply to the Property
provided the Property is developed in accordance with the Project
Approvals and this Agreement. Nothing in this subsection shall be
construed to limit City's right to insure that Developer timely provides all
infrastructure required by the Project Approvals, Subsequent Approvals,
and this Agreement.
5.2. Amendment of Project Approvals. No amendment of any of the Project
Approvals, whether adopted or approved by the City Council or through
the initiative or referendum process. shall apply to any portion of the
Property. unless the Developer has agreed in writing to the amendment.
5.3. Issuance of Subsequent Approvals. Applications for land use approvals,
entitlements and permits, including without limitation subdivision maps
(e.g. tentative, vesting tentative, parcel, vesting parcel, and final maps),
subdivision improvement agreements and other agreements relating to
the Project, lot line adjustments, preliminary and final planned
development permits, use permits, design review approvals (e.g. site
plans, architectural plans and landscaping plans), encroachment permits,
and sewer and water connections that are necessary to or desirable for
the development of the Project (collectively "the Subsequent Approvals ":
individually "a Subsequent Approval ") shall be consistent with the Project
Approvals and this Agreement. For purposes of this Agreement.
Subsequent Approvals do not include building permits.
Subsequent Approvals shall be governed by the Project Approvals and by
the applicable provisions of the Moorpark General Plan, the Moorpark
Municipal Code and other City ordinances, resolutions, rules, regulations,
policies, standards and requirements as most recently adopted or
approved by the City Council or through the initiative or referendum
process and in effect at the time that the application for the Subsequent
Approval is deemed complete by City (collectively "City Laws "). except
City Laws that:
(a) change any permitted or conditionally permitted uses of the
Property from what is allowed by the Project Approvals:
(b) limit or reduce the density or intensity of the Project. or any part
thereof. or otherwise require any reduction in the number of
proposed buildings or other improvements from what is allowed by
the Project Approvals.
(c) limit or control the rate, timing, phasing or sequencing of the
approval, development or construction of all or any part of the
Project in any manner, provided that all infrastructure required by
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the Project Approvals to serve the portion of the Property covered
by the Subsequent Approval is in place or is scheduled to be in
place prior to completion of construction:
(d) are not uniformly applied on a City -wide basis to all substantially
similar types of development projects or to all properties with
similar land use designations:
(e) prohibit or regulate development on slopes with grades greater
than 20 percent, including without limitation Moorpark Municipal
Code Chapter 17.38 or any successor thereto. within the Property:
or
(f} modify the land use Isom what is permitted by the City's General
Plan Land Use Element at the operative date of this Agreement or
that prohibits or restricts the establishment or expansion of urban
services including but not limited to community sewer systems to
the Project.
5.4. Term of Subsequent Approvals. The term of any Subsequent Approval.
except a tentative subdivision map or subdivision improvement or other
agreements relating to the Project, shall be one year, provided that the
term may be extended by the decision maker for two (2) additional one
(1) year periods upon application of the Developer holding 11he
Subsequent Approval filed with City's Community Development
Department prior to the expiration of that Approval. Each such
Subsequent Approval shall De deemed inaugurated, and no extension
shall be necessary, if a building permit was issued and the foundation
received final inspection by City's Building Inspector prior to the expiration
of that Approval. The term of any tentative subdivision map. should one
be approved by City during the term of this Agreement. shall be as set
forth under the Subdivision Map Act, Government Code Section 66410 et
seq. and Title 16 Subdivisions, of the Moorpark Municipal Code.
It is understood by City and Developer that certain Subsequent Approvals
may not remain valid for the term of this Agreement. Accordingly,
throughout the term of this Agreement. any Developer shall have the
right, at its election, to apply for a new permit to replace a permit that has
expired or is about to expire.
5.5. Modification of Approvals. Throughout the term of this Agreement.
Developer shall have the right, at its election and without risk to or waiver
of any right that is vested in it pursuant to this section. to apply to City for
modifications to Project Approvals and Subsequent Approvals. The
approval or conditional approval of any such modification shall not require
an amendment to this Agreement. provided that, in addition to any other
findings that may be required in order to approve or conditionally approve
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the modification, a finding is made that the modification is consistent with
this Agreement and does not alter the permitted uses, density, intensity.
maximum height, size of buildings or reservations and dedications as
contained in the Project Approvals.
5.6. Issuance of Building Permits. No building permit, final inspection or
certificate of occupancy will be unreasonably withheld from Developer if
all infrastructure required by the Project Approvals. Subsequent
Approvals, and this Agreement to serve the portion of the Property
covered by the building permit is in place or is scheduled to be in place
prior to completion of construction and all of the other relevant provisions
of the Project Approvals, Subsequent Approvals and this Agreement
have been satisfied. Consistent with subsection 5.1 of this Agreement. in
no event shall building permits be allocated on any annual numerical
basis or on any arbitrary allocation basis.
5.7. Moratorium on Development. Nothing in this Agreement shall prevent
City. whether by the City Council or through the initiative or referendum
process, from adopting or imposing a moratorium on the processing and
issuance of Subsequent Approvals and building permits and on the
finalizing of building permits by means of a final inspection or certificate of
occupancy. provided that the moratorium is adopted or imposed (i) on a
City -wide basis to all substantially similar types of development projects
and properties with similar land use designations and (ii) as a result of a
utility shortage or a reasonably foreseeable utility shortage, including
without limitation a shortage of water, sewer treatment capacity, electricity
or natural gas.
6. Developer Agreements.
6.1. Developer shall comply with (i) this Agreement, (ii) the Project Approvals,
(iii) all Subsequent Approvals for which it was the applicant or a
successor in interest to the applicant and (iv) the MMRP of the MND and
any subsequent or supplemental environmental actions.
6.2. All lands and interests in land dedicated to City shall be free and clear of
liens and encumbrances other than easements or restrictions that do not
preclude or interfere with use of the land or interest for its intended
purpose. as reasonably determined by City.
6.3. As a condition of and just prior to the issuance of a building permit for
each studio, office, support. or institutional building within the boundaries
of the Property. Developer shall pay City a development fee as described
herein (the "Development Fee "). The Development Fee may be
expended by City in its sole and unfettered discretion. On the operative
date of this Agreement. the amount of the Development Fee shall be
Forty -Four Thousand Three Hundred Twenty -Five Dollars ($44.325.00)
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per gross acre of industrial land as determined consistent with Section
7.7 of this Agreement. This fee shall be prorated for each building permit
based on building area and a total of 559.450 square feet of gross floor
area for the entire Project, as follows:
Fee Per Square Foot of Building Area =
(Project Acres as Determined per Section 7.7) x $44,325.00/Acre
559.450 Square Feet of Building Area
The fee shall be adjusted annually commencing January 1. 2013 by the
larger increase of a) or b) as follows:
a) The Consumer Price Index (CPI) increase shall be determined by
using the information provided by the U.S. Department of Labor.
Bureau of Labor Statistics, for all urban consumers within the Los
Angeles /Riverside /Orange County metropolitan area during the
prior year. The calculation shall be made using the month of
October over the prior October.
b) The calculation shall be made to reflect the change in the Caltrans
Highway Bid Price Index for Selected California Construction
Items for the latest twelve (12) month period available on
December 31 of the preceding year.
In the event there is a decrease in both of the referenced Indices for any
annual indexing, the Development Fee shall remain at its then current
amount until such time as the next subsequent annual indexing which
results in an increase.
6.4. As a condition of and just prior to the issuance of the first building permit
for a studio, office, support, or institutional building within the boundaries
of the Property. Developer shall pay City a traffic mitigation fee as
described herein ("Citywide Traffic Fee "). The Citywide Traffic Fee may
be expended by City in its sole and unfettered discretion. On the
operative date of this Agreement. the amount of the Citywide Traffic Fee
shall be Twenty -Nine Thousand, Seven - Hundred Dollars ($29.700.00)
per gross acre of industrial land as determined consistent with Section
7.7 of this Agreement. This fee shall be prorated for each building permit
based on building area and a total of 559.450 square feet of gross floor
area for the entire Project, as follows:
Fee Per Square Foot of Building Area =
(Protect Acres as Determined per Section 7.7) x $44,325.00/Acre
559.450 Square Feet of Building Area
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Commencing on January 1. 2013. and annually thereafter, the
contribution amount shall be increased to reflect the change in the
Caltrans Highway Bid Price Index for Selected California Construction
Items for the twelve i 12) month period ava4able on December 31 of the
preceding year ("annual indexing "). In the event there i5 a decrease in the
referenced Index for any annual indexing, the current amount of the fee
shall remain until such time as the next subsequent annual indexing
which results in an increase.
6.5. Prior to the issuance of the building permit for each studio, office.
support, or institutional building within the boundaries of the Property.
Developer shall pay an Air Quality Fee of sixty -three cents ($0.63) for
each square -foot of office building area and twenty -eight cents ($0.28) for
each square foot of studio. suPPDri nr ins1)1u1)ona) btAC)')ng area. The Air
Quality Fee shall satisfy the Transportation System Management Fee
requirement for the Project and may be expended by City in its sole
discretion for reduction of regional air pollution emissions and to mitigate
residual Project air quality impacts.
6.6. (This section is intentionally left blank.)
6.7. Prior to the issuance of the building permit for each studio, office,
support, or institutional building within the boundaries of the Property.
Developer shall pay a fee icy lieu of the dedicattia" of pa116&nd and se%ked
improvements (Park Fee). The amount of the Park Fee shall be fifty
cents ($0.50) for each square -foot of building area.
6.8. (This section is intentionally left blank.)
6.9. (This section is intentionally left blank.)
6.10. Developer agrees to cast affirmative ballots for the formation of one or
more assessment districts and levying of assessments, for the
maintenance of parkway and median landscaping, street lighting,
including but not limited to all water and electricity costs, the road
identified in Section 6.23 of this Agreement if it is dedicated and accepted
as a public street, and if requested by the City Council, parks for the
provision of special benefits conferred by same upon properties within the
Project.
Developer further agrees to, prior to occupancy of the first building of the
Project, form a "back up- assessment district for the maintenance of all
Project landscaping maintained by Developer visible from adjacent public
rights -of -way as determined by the Community Development Director and
Public Works Director /City Erigineer, and Project drainage improvements
maintained by Developer, should City need to recover costs if Developer
fails to maintain such landscaping and drainage facilities. Any facilities to
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be included in an assessment district or "back up" assessment district
shall have all utilities on separate meters from the Project.
In the event Developer files for and is granted a tentative subdivision map
as a Subsequent Approval, Developer agrees to form one or more
property owner associations and to obligate said associations to provide
for maintenance of the road called for by Section 6.23 of this Agreement
if private. as well as any parkway and median landscaping, landscaping
within Property visible from adjacent public rights -of -way, street lighting.
storm water detention and /or debris basins and related drainage facilities,
or other amenities in the event the aforementioned assessment district is
dissolved or altered in any way or assessments are reduced or limited in
any way by a ballot election of property owners or if the assessment
district is invalidated by court action. The obligation of said property
owner associations shall be more specifically defined in the conditions of
approval of any subdivision map granted as a Subsequent Approval.
6.11. In addition to fees specifically mentioned in this Agreement, Developer
agrees to pay all City capital improvement, development, and processing
fees at the rate and amount in effect at the time the fee is required to be
paid. Said fees include but are not limited to Library Facilities Fees,
Police Facilities Fees. Fire Facilities Fees, Art in Public Places Fees.
drainage, entitlement processing fees. and plan check and permit fees for
buildings and public improvements. Developer further agrees that unless
specifically exempted by this Agreement. it is subject to all fees imposed
by City at the operative date of this Agreement and such future fees
imposed as determined by City in its sole discretion so long as said fee is
imposed on similarly situated properties.
6.12. Developer shall pay the Los Angeles Avenue Area of Contribution (AOC)
fee for the gross area of land on which the studio complex and parking
areas are located prior to the issuance of the first permit for occupancy.
The AOC fee shall be the dollar amount in effect at the time of issuance
of the building permit for each building. Developer will receive credit
toward the payment of this fee for the cost of the core improvements in
Los Angeles Avenue as detailed in subsection 6.25 of this Agreement.
beginning at and including the curb face on the north side of Los Angeles
Avenue to the southern extent of public right -of -way improvements. and
for the signalization improvements at the Los Angeles Avenue /North Hills
Parkway intersection as detailed in subsection 6.21 of this Agreement.
Developer will not receive credit toward the payment of this fee for the
cost of parkway and sidewalk improvements adjacent to the southerly
property line.
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6.13. The street improvements for all streets scheduled for dedication to the
City shall be designed and constructed by Developer to provide for a 50-
year life as determined by the City Engineer.
6.14. Developer agrees that any fees and payments pursuant to this
Agreement shall be made without reservation, and Developer expressly
waives the right to payment of any such fees under protest pursuant to
California Government Code Section 66020 and statutes amendatory or
supplementary thereto. Developer further agrees that the fee it has
agreed to pay pursuant to subsection 6.3 of this Agreement is not a
public improvement fee collected pursuant to Government Code Section
66006 and statutes amendatory or supplementary thereto.
6.15. Developer agrees to comply with Section 15.40.150 of the Moorpark
Municipal Code and any provision amendatory or supplementary thereto
for annual review of this Agreement and further agrees that the annual
review shall include evaluation of its compliance with the approved MND
and MMRP. Developer agrees within ninety (90) days of the operative
date of this Agreement to deposit Twenty -Five Thousand Dollars
($25.000.00) for the cost of annual reviews for the life of this Agreement.
6.16. (This section is intentionally left blank.)
6.17. Developer agrees that any election to acquire property by eminent
domain shall be at City's sole discretion, and only after compliance with
all legally required procedures including but not limited to a hearing on a
proposed resolution of necessity.
6.18. Prior to recordation of this Agreement, Developer shall pay all
outstanding City processing costs related to preparation of this
Agreement. Project Approvals, and MND, should the deposit fund for this
project have a negative balance.
6.19. In the event any of the "referenced Index" or "CPI" referred to in any
portion of Section 6 above, are discontinued or revised, such successor
index with which the "CPI" and or "referenced Index" are replaced shall
be used in order to obtain substantially the same result as would
otherwise have been obtained if either or both the "CPI" and "referenced
Index" had not been discontinued or revised.
6.20. Developer shall dedicate the full right -of -way for North Hills Parkway
along the reach of the Project from Los Angeles Avenue on the south to
the railroad on the north. Dedication will include any slope and
construction easements necessary for the construction of the road
improvements and maintenance of the road, including slopes and
retaining walls. Developer agrees to participate in a community facilities
district or other financing mechanism acceptable to the City for the
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construction of North Hills Parkway or alternatively Developer will be
allowed to pay two million dollars ($2.000,000.00) which will be the
Developer's full pro -rata share of improvements of North Hills Parkway.
Commencing on January 1. 2013. and annually thereafter, the
contribution amount for Developer's full pro -rata share if improvements of
North Hills Parkway shall be increased to reflect the change in the
Caltrans Highway Bid Price Index for Selected California Construction
Items for the twelve (12) month period available on December 31 of the
preceding year ("annual indexing "). In the event there is a decrease in the
referenced Index for any annual indexing, the current amount of the fee
shall remain until such time as the next subsequent annual indexing
which results in an increase.
6.21. Developer agrees to pay for all costs of installation and to install traffic
signals at the intersection of Los Angeles Avenue and North Hills
Parkway and the intersection of the Property entrance and North Hills
Parkway. The traffic signals shall be synchronized with those on Los
Angeles Avenue and North Hills Parkway to the satisfaction of the City
Engineer. The traffic signal at Los Angeles Avenue and North Hills
Parkway shall be installed prior to occupancy of the first building. The
traffic signal at North Hills Parkway and the Property entrance shall be
installed as conditions warrant as determined by the City Manager upon a
recommendation from the Public Works Director/City Engineer.
6.22. Developer agrees that the upstream Ventura County Watershed
Protection District Basin (improvements) on the Hitch Ranch property
shall be operational prior to certificate of occupancy of the first building on
the Property. If said improvements are not operational by the time of
occupancy of the first building Developer will provide alternative
temporary detention acceptable to the Public Works Director/City
Engineer and Community Development Director. A bond may be
required to be posted to guarantee removal of any approved temporary
measures. No grading permit or building permit will be issued until the
improvements have been permitted by Ventura County Watershed
Protection District or if the alternative is used. by City.
6.23. Developer agrees to construct and maintain a private road (road)
perpendicular to North Hills Parkway and to connect said road to the
existing access easement for the adjacent properties to the west in
substantial conformance with the design presented for the Project
Approvals. and consistent with City standards for commercial and
industrial roads. Developer shall also extend said road approximately
369 feet to the west across the 6.0 acre property immediately to the west
(APN 511 -0- 200 -165) to line up with the driveway in the southern parking
lot of the 10.83 acre property further west (APN 511 -0- 200 -175) and shall
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improve the road across this adjoining property with a 40 -foot wide
roadway within a 60- foot -wide easement to City standards, including
concrete gutters, curbs, and sidewalk on one side of the street.
Developer further agrees that the private road shall be open to public
access, primarily for access from North Hills Parkway to the parking lot
for the project subject to this Agreement, as well as the two properties to
the west (APN 511 -0- 200 -165 and 511 -0- 200 -175). The road will be
constructed west from North Hills Parkway approximately 175 feet to the
existing flood control channel prior to occupancy of the first building of the
Project, and completed across the 6.0 acre property immediately to the
west prior to occupancy of the 325,000th square foot of gross floor area.
Prior to issuance of a grading permit, Developer shall provide an
Irrevocable Offer of Dedication to the City of an easement for the purpose
of providing legal access to the adjacent properties to the west, effective
upon each adjacent property owner agreeing to contribute to Developer a
pro rata share of the cost to maintain the road. The City of Moorpark
shall not assume any responsibility for the offered property or any
improvements to the property until this action has been accepted by the
City Council. If accepted by the City of Moorpark, this easement may be
fully assignable to the property owners to the west of this property, as an
easement appurtenant for access, ingress and egress purposes and all
uses appurtenant thereto.
As an alternative, the road may be offered for acceptance by the City
Council as public right -of -way should the developer be unable to obtain
an agreement for maintenance with adjacent property owners. If
accepted by City as public right -of -way, maintenance costs for said road
shall be paid for through an assessment district per Section 6.10 of this
Agreement. Developer understands City is not obligated to accept said
road as a public right -of -way or to form an assessment district.
The form of the Irrevocable Offer of Dedication and other required
appurtenant documents required to satisfy the above requirements shall
be to the satisfaction of the Community Development Director, City
Engineer, and the City Attorney.
6.24. Developer agrees to acquire all necessary property and Caltrans and City
permits, and construct improvements in Los Angeles Avenue to Caltrans-
approved design plans for the project frontage for a four -lane divided
highway with a raised median east of North Hills Parkway and a concrete
curb and gutter and concrete sidewalk on both sides of Los Angeles
Avenue east of the North Hills Parkway crosswalk at Los Angeles
Avenue, and a left turn lane /raised median, tapering to a two -lane
highway west of North Hills Parkway. Street trees, at standard city -
required spacing, shall be planted on the south side of Los Angeles
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Avenue east of North Hills Parkway and on the north side of Los Angeles
Avenue for the reach of the Project.
6.25. Developer agrees to execute a tri -party maintenance agreement with
Caltrans and the City of Moorpark to guarantee maintenance of the
landscaping along both the north and south sides of Los Angeles Avenue
along the property frontage.
6.26. Developer agrees to allow City to install a City Welcome Sign on the
pedestrian /cart bridge across North Hills Parkway, or an alternative
location on the Property to the satisfaction of the City, should a
pedestrian /cart bridge not be constructed. Developer will contribute
Twenty -Five Thousand Dollars ($25,000.00) for the construction and
erection of the sign. The funds may be expended by City in its sole and
unfettered discretion. The fee shall be paid prior to the occupancy of the
first building. Developer agrees that the design of the sign, including the
lighting shall be at the City's sole discretion.
7. City Agreements.
7.1. City shall commit reasonable time and resources of City staff to work with
Developer on the expedited and parallel processing of applications for
Subsequent Approvals for the Project area and shall use overtime and
independent contractors whenever possible. Developer shall, upon
written pre - approval, assume any risk related to, and shall pay the
additional costs incurred by City for, the expedited and parallel
processing.
7.2. If requested in writing by Developer and limited to City's legal authority,
City at its sole discretion shall proceed to acquire, at Developer's sole
cost and expense, easements or fee title to land in which Developer does
not have title or interest in order to allow construction of public
improvements required of Developer including any land which is outside
City's legal boundaries. The process shall generally follow Government
Code Section 66462.5 et seq. and shall include the obligation of
Developer to enter into an agreement with City, guaranteed by cash
deposits and other security as the City may require, to pay all City costs
including but not limited to, acquisition of the interest, attorney fees,
appraisal fees, engineering fees, City staff costs, and City overhead
expenses of fifteen percent (15 %) on all out -of- pocket costs.
7.3. The City Manager is authorized to sign an early grading agreement on
behalf of City to allow rough grading of the Project prior to City Council
approval of a final subdivision map. Said early grading agreement shall
be consistent with the conditions of approval for IPD 2009 -01 and
contingent on City Engineer and Community Development Director
acceptance of a Performance Bond in a form and amount satisfactory to
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them to guarantee implementation of the erosion control plan and
completion of the rough grading and construction of on -site and off -site
improvements. In the case of failure to comply with the terms and
conditions of the early grading agreement, the City Council may by
resolution declare the surety forfeited.
7.4. City agrees that whenever possible as determined by City in its sole
discretion to process concurrently all land use entitlements for the same
property so long as said entitlements are deemed complete.
7.5. City agrees that the Park Fee required under subsection 6.7 of this
Agreement meets Developer's obligation for park land dedication
provisions of state law and City codes.
7.6. City agrees that credit will be given toward the Art in Public Places Fee
required pursuant to subsection 6.11 of this Agreement and Chapter
17.50 of the Moorpark Municipal Code by the integration of artwork into
the wall required immediately south of the flood control channel along the
Los Angeles Avenue frontage, if said artwork is approved by Caltrans and
by the City Council pursuant to the procedures in Chapter 17.50 of the
Moorpark Municipal Code.
7.7. Unless otherwise specified in the applicable fee resolutions or the
Municipal Code, all development fees based on project area shall be
calculated using the area for private use after dedication of public rights
of way. The private road providing access from North Hills Parkway to
the property to the west, and the exclusive easements to the Watershed
Protection District for flood control purposes shall not be included in the
area for the calculation of development fees. Unless otherwise specified
in the applicable fee resolutions or the Municipal Code, all development
fees based on building floor area shall be calculated using gross floor
area as defined by the Zoning Ordinance.
7.8. City shall facilitate the reimbursement to Developer of any costs incurred
by Developer that may be subject to partial reimbursement from other
developers as a condition of approval of a tract map. development permit.
or development agreement with one or more other developers.
7.9. With the acceptance of the $25.000 City Welcome Sign contribution
addressed in Section 6.26 of this Agreement, City agrees to be
responsible for any costs associated with construction and maintenance
of said City Welcome Sign.
7.10. City agrees. if requested by Developer. to facilitate discussions with
property owners to the west (APN 511 -0- 200 -165 and 511 -0- 200 -175)
regarding participation in a maintenance agreement of the road required
per Section 6.23 of this Agreement. City further agrees to consider
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accepting said road as a public street (with formation of an assessment
district for maintenance) should Developer be unable to reach an
agreement with neighboring property owners.
7.11. City agrees to give Developer credit toward the payment of the Los
Angeles Avenue Area of Contribution Fee as noted in Section 6.12 for
the cost of the core improvements in Los Angeles Avenue as detailed in
subsection 6.25 of this Agreement, beginning at and including the curb
face on the north side of Los Angeles Avenue to the southern extent of
public right -of -way improvements, and for the signalization improvements
at the Los Angeles Avenue /North Hills Parkway intersection as detailed in
subsection 6.21 of this Agreement. Developer will not receive credit
toward the payment of the Los Angeles Area of Contribution fee for the
cost of parkway and sidewalk improvements adjacent to the southerly
property line.
8. Supersession of Agreement by Change of Law. In the event that any state or
federal law or regulation enacted after the date the Enabling Ordinance was
adopted by the City Council prevents or precludes compliance with any provision of
the Agreement, such provision shall be deemed modified or suspended to comply
with such state or federal law or regulation. as reasonably determined necessary by
City.
9. Demonstration of Good Faith Compliance. In order to ascertain compliance by
Developer with the provisions of this Agreement, the Agreement shall be reviewed
annually in accordance with Moorpark Municipal Code Chapter 15.40. of City or any
successor thereof then in effect. The failure of City to conduct any such annual
review shall not, in any manner, constitute a breach of this Agreement by City,
diminish, impede, or abrogate the obligations of Developer hereunder or render this
Agreement invalid or void. At the same time as the referenced annual review. City
shall also review Developer's compliance with the MMRP.
10. Authorized Delays. Performance by any Party of its obligations hereunder, other
than payment of fees, shall be excused during any period of "Excusable Delay ". as
hereinafter defined, provided that the Party claiming the delay gives notice of the
delay to the other Parties as soon as possible after the same has been ascertained.
For purposes hereof. Excusable Delay shall mean delay that directly affects. and is
beyond the reasonable control of. the Party claiming the delay, including without
limitation: (a) act of God: (b) civil commotion: (c) riot: (d) strike, picketing or other
labor dispute: (e) shortage of materials or supplies: (e) damage to work in progress
by reason of fire, flood, earthquake or other casualty; (f) failure. delay or inability of
City to provide adequate levels of public services. facilities or infrastructure to the
Property including. by way of example only. the lack of water to serve any portion of
the Property due to drought: (g) delay caused by a restriction imposed or mandated
by a governmental entity other than City: or (h) litigation brought by a third party
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attacking the validity of this Agreement, a Project Approval. a Subsequent Approval
or any other action necessary for development of the Property.
11. Default Provisions.
11.1. Default by Developer. The Developer shall be deemed to have breached
this Agreement if it:
(a) practices, or attempts to practice. any fraud or deceit upon City: or
willfully violates any order, ruling or decision of any regulatory or
judicial body having jurisdiction over the Property or the Project,
provided that Developer may contest any such order, ruling or
decision by appropriate proceedings conducted in good faith, in
which event no breach of this Agreement shall be deemed to have
occurred unless and until there is a final adjudication adverse to
Developer: or
(b) fails to make any payments required under this Agreement: or
(c) materially breaches any of the provisions of the Agreement.
11.2. Default by City. City shall be deemed in breach of this Agreement if it
materially breaches any of the provisions of the Agreement.
11.3. Content of Notice of Violation. Every notice of violation shall state with
specificity that it is given pursuant to this subsection of the Agreement,
the nature of the alleged breach, and the manner in which the breach
may be satisfactorily cured. Every notice shall include a period to cure.
which period of time shall not be less than ten (10) days from the date
that the notice is deemed received, provided if the defaulting party cannot
reasonably cure the breach within the time set forth in the notice such
party must commence to cure the breach within such time limit and
diligently effect such cure thereafter. The notice shall be deemed
received when personally delivered or upon the third (3rd) day after
deposit in the United States mail, registered or certified. postage prepaid,
return receipt requested. to the Parties at the addresses set forth in
Exhibit "B" attached hereto and incorporated herein, in accordance with
Section 20 hereof.
11.4. Remedies for Breach. The Parties acknowledge that remedies at law.
including without limitation money damages, would be inadequate for
breach of this Agreement by any Party due to the size, nature and scope
of the Project. The Parties also acknowledge that it would not be feasible
or possible to restore the Property to its natural condition once
implementation of the Agreement has begun. Therefore. the Parties
agree that the remedies for breach of the Agreement shall be limited to
the remedies expressly set forth in this subsection. Prior to pursuing the
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remedies set forth herein, notice and an opportunity to cure shall be
provided pursuant to subsection 11.3 herein.
The remedies for breach of the Agreement by City shall be injunctive
relief and /or specific performance.
The remedies for breach of the Agreement by Developer shall be
injunctive relief and /or specific performance, including, in the case of a
failure to pay a fee required hereunder, to compel such payment. In
addition, if the breach is of subsections 6.10.6.12, 6.13, 6.14, 6.15.6.18.
6.20, 6.21, 6.22, 6.23, 6.24. and 6.25 of this Agreement. City shall have
the right to withhold the issuance of building permits to Developer
throughout the Project from the date that the notice of violation was given
pursuant to subsection 11.3 hereof until the date that the breach is cured
as provided in the notice of violation.
Nothing in this subsection shall be deemed to preclude City from
prosecuting a criminal action against any Developer who violates any City
ordinance or state statute.
12. Mortgage Protection. At the same time that City gives notice to Developer of a
breach. City shall send a copy of the notice to each holder of record of any deed of
trust on the portion of the Property in which Developer has a legal interest
( "Financier "), provided that the Financier has given prior written notice of its name
and mailing address to City and the notice makes specific reference to this section.
The copies shall be sent by United States mail, registered or certified, postage
prepaid, return receipt requested, and shall be deemed received upon the third (3rd)
day after deposit.
Each Financier that has given prior notice to City pursuant to this section shall have
the right, at its option and insofar as the rights of City are concerned, to cure any
such breach within fifteen (15) days after the receipt of the notice from City. If such
breach cannot be cured within such time period, the Financier shall have such
additional period as may be reasonably required to cure the same, provided that the
Financier gives notice to City of its intention to cure and commences the cure within
fifteen (15) days after receipt of the notice from City and thereafter diligently
prosecutes the same to completion. City shall not commence legal action against
Developer by reason of Developer's breach without allowing the Financier to cure
the same as specified herein.
Notwithstanding any cure by Financier, this Agreement shall be binding and
effective against the Financier and every owner of the Property. or part thereof.
whose title thereto is acquired by foreclosure. trustee sale or otherwise.
13. Estoppel Certificate. At any time and from time to time. Developer may deliver
written notice to City and City may deliver written notice to Developer requesting that
such Party certify in writing that, to the knowledge of the certifying Party. (i) this
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Agreement is in full force and effect and a binding obligation of the Parties. (ii) this
Agreement has not been amended, or if amended, the identity of each amendment.
and (iii) the requesting Party is not in breach of this Agreement, or if in breach, a
description of each such breach. The Party receiving such a request shall execute
and return the certificate within thirty (30) days following receipt of the notice. City
acknowledges that a certificate may be relied upon by successors in interest to the
Developer who requested the certificate and by holders of record of deeds of trust
on the portion of the Property in which that Developer has a legal interest.
14. Administration of Agreement. Any decision by City staff concerning the
interpretation and administration of this Agreement and development of the Property
in accordance herewith may be appealed by the Developer to the City Council,
provided that any such appeal shall be filed with the City Clerk of City within thirty
(30) days after the affected Developer receives notice of the staff decision. The City
Council shall render its decision to affirm, reverse or modify the staff decision within
sixty (60) days after the appeal was filed. The Developer shall not seek judicial
review of any staff decision without first having exhausted its remedies pursuant to
this section.
15. Amendment or Termination by Mutual Consent. In accordance with the provisions
of Chapter 15.40 of the Moorpark Municipal Code of City or any successor thereof
then in effect, this Agreement may be amended or terminated, in whole or in part.
by mutual consent of City and the affected Developer.
15.1. Exemption for Amendments of Protect Approvals. No amendment to a
Project Approval shall require an amendment to this Agreement and any
such amendment shall be deemed to be incorporated into this Agreement
at the time that the amendment becomes effective, provided that the
amendment is consistent with this Agreement and does not alter the
permitted uses, density, intensity, maximum height, size of buildings or
reservations and dedications as contained in the Project Approvals.
16. Indemnification. Developer shall indemnify, defend with counsel approved by City,
and hold harmless City and its officers. employees and agents from and against any
and all losses, liabilities, fines, penalties, costs, claims, demands, damages, injuries
or judgments arising out of, or resulting in any way from. Developer's performance
pursuant to this Agreement.
Developer shall indemnify, defend with counsel approved by City. and hold
harmless City and its officers. employees and agents from and against any action or
proceeding to attack, review. set aside. void or annul this Agreement. or any
provision thereof, or any Project Approval or Subsequent Approval or modifications
thereto, or any other subsequent entitlements for the project and including any
related environmental approval.
17. Time of Essence. Time is of the essence for each provision of this Agreement of
which time is an element.
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18. Operative Date. This Agreement shall become operative on the date the Enabling
Ordinance becomes effective pursuant to Government Code Section 36937.
19. Term. This Agreement shall remain in full force and effect for a term of ten (10)
years commencing on its operative date. unless said term is amended or the
Agreement is sooner terminated as otherwise provided herein. Upon notice in
accordance with subsection 20 below the Developer may notify City at least one
hundred eighty (180) days in advance of the term of this Agreement that an
additional term is necessary for the completion of the Project. City may. at its sole
and unfettered discretion. extend the agreement for a term of not less than one (1)
year and no more than ten (10) years. Said extension of the term of this Agreement
may include the addition of any new fees which may be in effect at the time of the
extension request.
Expiration of the term or earlier termination of this Agreement shall not automatically
affect any Project Approval or Subsequent Approval that has been granted or any
right or obligation arising independently from such Project Approval or Subsequent
Approval.
Upon expiration of the term or earlier termination of this Agreement. the Parties
shall execute any document reasonably requested by any Party to remove this
Agreement from the public records as to the Property, and every portion thereof, to
the extent permitted by applicable laws.
20. Notices. All notices and other communications given pursuant to this Agreement
shall be in writing and shall be deemed received when personally delivered or upon
the third (3rd) day after deposit in the United States mail, registered or certified,
postage prepaid, return receipt requested, to the Parties at the addresses set forth
in Exhibit "B" attached hereto and incorporated herein.
Any Party may, from time to time, by written notice to the other, designate a different
address which shall be substituted for the one above specified.
21. Entire Agreement. This Agreement and those exhibits and documents referenced
herein contain the entire agreement between the Parties regarding the subject
matter hereof, and all prior agreements or understandings. oral or written, are
hereby merged herein. This Agreement shall not be amended. except as expressly
provided herein.
22. Waiver. No waiver of any provision of this Agreement shall constitute a waiver of
any other provision, whether or not similar; nor shall any such waiver constitute a
continuing or subsequent waiver of the same provision. No waiver shall be binding.
unless it is executed in writing by a duly authorized representative of the Party
against whom enforcement of the waiver is sought
23. Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of this
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Agreement shall be effective to the extent the remaining provisions are not rendered
impractical to perform. taking into consideration the purposes of this Agreement.
24. Relationship of the Parties. Each Party acknowledges that, in entering into and
performing under this Agreement, it is acting as an independent entity and not as an
agent of any of the other Parties in any respect. Nothing contained herein or in any
document executed in connection herewith shall be construed as creating the
relationship of partners, joint ventures or any other association of any kind or nature
between City and Developer. jointly or severally.
25. No Third Party Beneficiaries. This Agreement is made and entered into for the sole
benefit of the Parties and their successors in interest. No other person shall have
any right of action based upon any provision of this Agreement.
26. Recordation of Agreement and Amendments. This Agreement and any amendment
thereof shall be recorded with the County Recorder of the County of Ventura by the
City Clerk of City within the period required by Chapter 15.40 of the Moorpark
Municipal Code of City or any successor thereof then in effect.
27. Cooperation Between City and Developer. City and Developer shall execute and
deliver to the other all such other and further instruments and documents as may be
necessary to carry out the purposes of this Agreement.
28. Rules of Construction. The captions and headings of the various sections and
subsections of this Agreement are for convenience of reference only, and they shall
not constitute a part of this Agreement for any other purpose or affect interpretation
of the Agreement. Should any provision of this Agreement be found to be in conflict
with any provision of the Project Approvals or the Subsequent Approvals, the
provision of this Agreement shall prevail. Should any provision of the
Implementation Plan be found to be in conflict with any provision of this Agreement,
the provisions of the Implementation Plan shall prevail.
29. Joint Preparation. This Agreement shall be deemed to have been prepared jointly
and equally by the Parties. and it shall not be construed against any Party on the
ground that the Party prepared the Agreement or caused it to be prepared.
30. Governing Law and Venue. This Agreement is made, entered into, and executed in
the County of Ventura. California. and the laws of the State of California shall
govern its interpretation and enforcement. Any action, suit or proceeding related to,
or arising from. this Agreement shall be filed in the appropriate court having
jurisdiction in the County of Ventura.
31. Attorneys' Fees. In the event any action. suit or proceeding is brought for the
enforcement or declaration of any right or obligation pursuant to. or as a result of
any alleged breach of. this Agreement, the prevailing Party shall be entitled to its
reasonable attorneys' fees and litigation expenses and costs. and any judgment.
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order or decree rendered in such action, suit or proceeding shall include an award
thereof.
32. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which constitute one and the same
instrument.
IN WITNESS WHEREOF, the Developer and City of Moorpark have executed this
Development Agreement on the date first above written.
OWNER/DEVELOPER
Los Angeles Avenue LLC
CITY OF MOORPARK
Janice S. Parvin
Mayor
ALL SIGNATURES MUST BE NOTARIZED
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EXHIBIT A
LEGAL DESCRIPTION
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EXHIBIT "B"
ADDRESSES OF PARTIES
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
Los Angeles Avenue LLC
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